IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Jail Appeal No.D-246 of
2019 a/w
Confirmation Case No.D-17 of
2019
Crl. Jail Appeal No.S-245/2019
Present:-
Mr. Justice Naimatullah Phulpoto, J.
Mr.
Justice Abdul Mobeen Lakho, J.
Appellant: Abdul Raheem @ Raheem
Chachar through Mr. Shabir Ali Bozdar, Advocate
Complainant: Mst.
Amna through Mr. Anwar Ali Lohar, Advocate
Respondent: Mr. Zulfiqar Ali Jatoi, Additional
Prosecutor General Sindh
Date of hearing:
01.11.2022
Date of
announcement: 22.12.2022
J U D G M E N T
ABDUL MOBEEN LAKHO, J- Appellant
Abdul Raheem alias Raheem has assailed the judgment dated 29.10.2019, passed by
learned Additional Sessions Judge-I (MCTC), Ghotki in S.C.No. 491 of 2016 (re:
State Versus Abdul Raheem alias Raheem and others) arising out of Crime No.280
of 2016 under Sections 302, 201, 34 PPC of Police Station “A” Section, Ghotki,
whereby the appellant was convicted u/s 302(b) PPC and sentenced to death as
Ta’zir and to pay compensation of Rs.10,00,000/- to the legal heirs of deceased
as provided u/s 544-A, Cr.P.C and in case of default, it was ordered that the
same to be recovered as arrears of the land revenue; he was also convicted u/s
201 PPC and sentenced to suffer rigorous imprisonment for 07 years and to pay
fine of Rs.100,000/- and in case of default, he was ordered to undergo S.I. for
06 months more with benefit of section 382-B Cr.PC. Learned trial court has
also made a reference for confirmation of death sentence in compliance of
Section 374, Cr.P.C.
2. The brief facts of the
prosecution case are that on 05.10.2016 at 1900 hours, complainant Mst. Amna
appeared at Police Station ‘A’ Section, Ghotki and lodged the FIR stating
therein that her son, Shahbaz Ahmed, aged about 21 years, was living with his
father at Karachi for getting education. Her husband contracted second marriage
with Mst. Nasreen, who was also residing with him at Karachi. Abdul Rahim,
nephew of her husband also used to reside with him at Karachi and was doing house
work there. It is stated that a few days prior to the lodgment of FIR, her son
Shahbaz Ahmed returned from Karachi and informed her that he had seen Abdul
Rahim with his step-mother Mst. Nasreen in objectionable condition. On
28.09.2016, she, her son Shahbaz Ahmed, her maternal grandson Ali Raza and her
son-in-law Farzand, were available in her house, when at about 10:15 p.m., Rahim
(present appellant) came there and took his son Shahbaz Ali with him; however,
her witnesses followed them at outer gate of the house and saw two unidentified
persons were available in the street, who also accompanied with them. Shahbaz
did not return and on contact his cell phone was found powered off. Complainant
then contacted Abdul Rahim on his cell phone, who also did not reply
satisfactorily. Thereafter, Abdul Rahim called complainant and informed her that
he at the instance of Mst. Nasreen and with the help of two other unknown
accused, committed the murder of her son Shahbaz Ahmed and in order to cause
disappearance and destruction of the evidence had thrown the dead body in
sugarcane crop. On 03.10.2016, complainant along with above said witnesses went
in search of her son in sugarcane crop and found dead body of her son Shahbaz
lying there. She informed the police and then with the help of PWs and police
brought dead body at Taluka Hospital Ghotki and after postmortem examination,
the dead body was handed over to her. After completing funeral rite, she lodged
F.I.R, at Police Station ‘A’ Section, Ghotki against accused persons.
3. After registration of
F.I.R. police started investigation of the case and during investigation Police
arrested accused Abdul Rahim and Mst. Nasreen, whereas name of accused
Shahnawaz was placed in colum No.2 of the challan.
4. After
completion of the investigation, report under Section 173 Cr.P.C. was submitted
before the Trial Court. The prosecution in order to prove its case examined ten
witnesses, who produced the relevant documents at trial. Thereafter,
prosecution side was closed vide statement at
Ex.20.
5. Trial court had recorded
the statements of accused under sections 342, Cr.P.C, wherein they have denied
the prosecution allegations and pleaded innocence. However, they neither
examined themselves on oath u/s 340(2) Cr.P.C nor led any evidence in their
defence.
6. After hearing the
parties and assessment of the evidence brought on record, learned trial court while
acquitting co-accused Mst. Nasreen, convicted and sentenced the appellant Abdul
Raheem alias Raheem Chachar as detailed above.
7. Learned Counsel for appellant
contended that the appellant has been falsely implicated in the present case by
the complainant party; that the
witnesses being closely related to the deceased are interested witnesses hence
they have falsely deposed against the appellant; that there was no eye-witness
in this case; that it was case of
last seen evidence; that there was unexplained delay of about 07 days
in lodgment of the F.I.R for which no plausible explanation has been furnished;
that pistol has been foisted upon the
appellant and that too was sent to ballistic expert after delay of 09 days
without furnishing any explanation; that complainant has failed to disclose the
number from which appellant Abdul Raheem allegedly informed about killing of the
deceased; that even I.O had failed to collect CDR of the cell phone numbers of
the appellant and the complainant; that there are material inconsistencies in
the evidence of the prosecution witnesses; that Sachal, father of deceased was not
examined by the prosecution; that Cellular phone with SIM seized by the police
on 10.10.2016, according to CDR report, was found functional subsequently; that
on the basis of same evidence co-accused Mst. Nasreen was acquitted, hence he
sought for acquittal of the appellant too. In support of his contentions,
learned Counsel for the appellant has relied upon the cases of Muhammad Abid v. The State another (PLD 2018
Supreme Court 813), Sajjan Solangi v. The State (2019SCMR 872), Ghous Bux v.
Saleem and 3 others (2017P.Cr.LJ836), Gul Hassan alias Gulan v. The State
(2022P.Cr.LJ Note 80), Abdul Jabbar and another v. The State (2019 SCMR 129)
and Muhammad Bilal v. The State and
others (2021 SCMR 1039).
8. On the other hand,
learned Additional Prosecutor General assisted by counsel for complainant
contended that the appellant has been nominated in the F.I.R that mere
relationship between the P.Ws is no ground to discard their evidence; that all
the P.Ws have fully supported the case of prosecution; that at trial
prosecution successfully established last seen evidence that deceased was alive
when he left with appellant, therefore, he prayed for dismissal of the instant appeal.
In support of his contention he relied upon cases of Allah Ditta v. The Crown (1969 P.Cr.LJ 1108), Abdus Samad v. The State
(PLD 1964 Supreme Court 167), Muhammad Amin v. The State (2000 SCMR 1784),
Muhammad Naseem alias Deemi v. The State (2011 SCMR 872) and Khair Muhammad and
another v. The State (2019 P.Cr.LJ 26).
9. Heard and perused the
record minutely.
10. Present
case is primarily based upon last
seen evidence, it is the case of the
prosecution that the deceased was lastly seen in the company of the appellant
on 28.09.2016 and from the said time the deceased was missing. To prove it,
prosecution examined complainant, P.Ws Ali Raza and Farzand Ali, they claimed that
deceased accompanied with the appellant to go to Ghotki city, however, it is
strange to note that when the deceased did not return for the whole night and
his cell number was also found powered off, then as to why the complainant or
the above named witnesses had not approached the police to render the
information about missing of the deceased and waited till disclosure by the
appellant regarding commission of the murder of the deceased. P.W Ali Raza has
stated during his cross examination that after 30 minutes of leaving of the
house by the deceased, he contacted him on his cell phone, who disclosed that
he was with appellant and they were going to attend a function, however,
nothing has been brought on record to show that P.W Ali Raza actually contacted
the deceased on that night to establish that the deceased had gone with the
appellant. Thus, the claim of the complainant, P.Ws Ali Raza and Farzand Ali
with regard to lastly seen the deceased in the company of the appellant appears
to be unbelievable.
11. So far as identification of the dead body is
concerned, Dr. Asif Hakeem in his evidence has stated that the dead body was completely
decomposed, it was impossible to identify it. From perusal of record, it
appears that the dead body of the deceased was identified through chappal and
clothes by the complainant, however, identification of the body on the basis of
shalwar and chappal cannot be safely relied upon. Moreover, no report of
Serologist is brought on record to prove that the body was that of the deceased.
In our considered view, identification of dead body was doubtful.
12. Record
reflects that as per prosecution case, the appellant called at the cell phone of the complainant and informed
her about killing of her son and pointed out the place where the dead body was thrown,
however, nothing has been brought on record to establish that the appellant
contacted the complainant; the SIM allegedly recovered from the mobile of the
appellant did not match with the numbers mentioned in the CDR produced at
trial, even the said SIM is not in the name of the appellant.
13. Co-accused
Mst. Nasreen has been acquitted by the trial Court. Conviction of appellant on
same set of evidence, without independent corroboration was unwarranted in law.
14. We have also found material contradictions in
the evidence of the complainant, PWs Ali Raza and Farzand Ali. The complainant in
her evidence has stated that 2˝ months prior to the incident Shahbaz Ahmed
returned from Karachi and disclosed about illicit relations between the
appellant and Mst. Nasreen (his step-mother), however, evidence of P.Ws Ali
Raza and Farzand Ali is totally different in this respect, P.W Ali Raza stated
that 6/7 months prior to the incident deceased Shahbaz returned from Karachi
and informed the complainant about the illicit relations between Rahim and his
step mother, whereas, P.W Farzand Ali stated that it was about 01 month prior
to the incident when Shahbaz returned from Karachi and informed the complainant
about such illicit relationship. Though it was claimed by them that information
of illicit relationship of the appellant with his wife Mst. Nasreen and about
missing of the deceased was conveyed to Sachal,
father of the deceased, but surprisingly, he was not examined by the
prosecution. In our view, withholding of his evidence giving
rise to a presumption in terms of Articles 129(g) of the Qanun-e-Shahadat
Order, 1984 that, if he had been produced, his testimony might have been unfavourable
to the prosecution.
15. With
regard to admission of the guilt by the appellant before I.O/ Inspector Aftab
Hussain is concerned. Admission before police during investigation is
inadmissible in evidence.
16. So
far as recovery of pistol on the pointation of the appellant and lathi is concerned, such recoveries are inconsequential
for the reason that in the mashirnama of recovery of the pistol, number of
pistol was not mentioned whereas during trial when case property was de-sealed
it transpired that pistol had a number and company. Record further reflects
that it was sent to ballistic expert on 03.11.2016 after delay of 09 days
without furnishing any explanation. Even the safe custody and safe transmission of the weapon and
empties have also not been proved before trial Court. Even incharge of the
Malkhana has not been examined before the trial Court to prove the safe custody
of the pistol and the empties. The prosecution is under legal obligation to
prove the safe custody of the recovered weapon and its safe transmission to the
Forensic Science Laboratory as held by the Hon’ble Supreme Court in the case of
Kamal Din alias Kamala v. The State (2018 SCMR 577). Medical Officer in the
postmortem report has only opined fire arm injuries and no blunt substance
injury has been shown, hence the recovery of lathi is of no help to the case of
the prosecution. As regards to
the recovery of Pistol on the pointation of the appellant is concerned it is
also not produced by the prosecution for the above stated reasons.
17. Thus, in our view
even when taking the prosecution case as a whole, and at its best, in terms of
last seen evidence, extra judicial confession of the appellant before the
police and production of incriminating weapons, cell phone containing SIM and other
circumstantial evidence. Circumstantial
evidence, in a murder case, should be like a well-knit chain, one end of which
touches the dead body of the deceased and the other the neck of the accused. No
link in chain of the circumstances should be broken and the circumstances
should be such as cannot be explained away on any reasonable hypothesis other
than guilt of accused person. Chain of such facts and circumstances has to be
completed to establish guilt of the accused person beyond reasonable doubt and
to make the plea of his being innocent incompatible with the weight of evidence
against him. Any link missing from the chain breaks the whole chain and renders
the same unreliable; in that event conviction cannot safely be recorded, especially
on a capital charge. In the present case, chain is incomplete. Therefore, we
are unable to rely upon such type of evidence. Reliance is placed upon the case
of Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600).
18. It is an axiomatic principle of law that
in case of doubt, the benefit thereof must accrue in favour of the accused as
matter of right and not of grace. Reliance is placed upon cases of Azhar Iqbal
v. The State (2013 SCMR 383) and Muhammad Akram v. The State (2009 SCMR 230).
19. For the foregoing reasons, appeals are allowed,
the conviction and
sentence awarded to the appellant by way of impugned judgments are set-aside,
consequently, he is acquitted of the offence for which he was charged, tried
and convicted by learned trial Court and he shall be released forthwith, if not
required to be detained in any other custody case. The confirmation
reference is answered in the negative
and the appellant shall be released forthwith unless he is wanted in any other
custody case.
In the view of above, aforesaid
appeals and confirmation reference are disposed of in above terms.
JUDGE
JUDGE
Ihsan/*